9. Claims

Claims which may arise with regard to the quality of the goods owing to their non-conformity with the standards and technical conditions provided for under clause 3 of this contract as well as claims concerning the quantity of the goods will be considered by the Seller only if submitted within 45 days from the date of arrival of the goods at the place of destination shown in the Bill of Lading and in any case not later than within 90 days of the date of delivery of the goods c.i.f., f.o.b. or f.o.r.

Claims which arise through faulty material or workmanship as stipulated in clause 8 will be considered by the Seller only if submitted within the guarantee period.

The claims should be corroborated⁹ by the Buyers' reports drawn up with the assistance of competent organizations.

No claims put forward in respect of any consignment of the goods can be used by the Buyer as a reason for his refusal to accept

96

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the goods and to pay for them. This applies to both the consignment in respect of which a claim has been raised and to all further consignments to be delivered under the present contract.

The date of the postmark on the Buyer's letter containing the claim and addressed to the Seller to be considered as the date of the claim.

10. Contingencies

Should any circumstances arise which prevent the complete or partial fulfillment by any of the parties of their respective obligations under this contract, namely: fire, acts of elements, war, military operations of any character, blockades, prohibition of exports or imports or any other circumstances beyond the control of the parties, the time stipulated for the fulfillment of the obligations shall be extended for a period equal to that during which such circumstances will last.

If the above circumstances last for more than six months, each party shall have the right to refuse any further fulfillment of the obligations under the contract and in such case neither of the parties shall have the right to make a demand upon the other party for compensation for any possible losses.

The party for whom it becomes impossible to meet their obligations under the contract, shall immediately advise the other party as regards the beginning and the cessation of the circumstances preventing the fulfillment of their obligations.

Certificates issued by a respective Chamber of Commerce of the Seller's or Buyer's country shall be a sufficient proof of such circumstances and their duration.

11. Arbitration

All disputes and differences which may arise out of the present contract and/or in connection with it are to be referred for settlement to¹⁰ the Foreign Trade Arbitration Commission at the Russian Chamber of Commerce in Moscow in accordance with the Rules of Procedure of the said Commission the awards of which are final and binding upon both parties¹¹. Application to State Courts is excluded¹².

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12. Other conditions

(1) Neither party is entitled to transfer¹³ their rights and obligations under the present contract to third person without a written consent thereto of the other party.

2. Any alterations and additions to the present contract will be valid only if made in writing and duly signed by both parties.

3. After the signing of the present contract all preceding negotiations and correspondence pertaining¹⁴ to it become null and void¹⁵.

LEGAL ADDRESSES OF THE PARTIES

Sellers

Buyers

SELLER BUYER

(Signature) (Signature)

If one compares these two contracts, one will note that the majority of clauses in them is the same. However, there are also some apparent differences. These are explained by the different subj ect matter of the two contracts. For instance, the second contract has a special clause covering Guarantee (8). This is understandable, since in Contract No. 2 the selling of machinery is dealt with¹⁶, and the agreement upon guarantee is essential¹⁷.

Also, Contract No. 2 has special clauses covering the Time of Delivery (4) and Claims (9). Insurance procedures, which in the first contract are specified by a special clause (VI), in Contract No. 2 are included in Clause 6 ("Terms of Payment").

Upon more careful comparison¹⁸, other differences will become apparent. Such a comparison, in fact, is strongly recommended to the users of this book, because it allows to understand better what contracts are about, what is essential for them, and what is not so essential.

NOTES

1. expenses incurred — убытки, понесенные

2. duties, taxes, customs — пошлины, налоги, таможенные

сборы

99

3. manufacturing works

4. through faulty material or workmanship

5. provided conj

6. to invalidate v

7. consent n to consent v

8. rapidly wearing (parts)

9. to corroborate v

10. to refer for settlement to ...

11. final and binding upon both parties

12. application to state courts is excluded

13. to transfer v

14. to pertain to v

15. to become null and void

16. to deal with v

17. essential adj

18. upon... comparison

• завод-изготовитель

• из-за дефекта материала или работы

• если; в том случае, если

• лишать силы, действия

• согласие

• давать согласие

• быстро изнашивающиеся (части)

• подтверждать

• передавать для решения в...

• окончательный и обязатель­ный для обеих сторон

• без передачи дел в общеграж­данские суды

• зд. передавать

— относиться к

• терять силу

• иметь дело с

• существенный

• при... сравнении

(CONTRACTS AND THEIR PERFORMANCE (continued) Chapter ^x КОНТРАКТЫ И ИХ ИСПОЛНЕНИЕ (продолжение) It quite often occurs that¹ the performance of the contracts is not altogether smooth², and that one of the parties to the contract believes that the other party is not fulfilling its terms. In this case a letter of complaint³ will probably be sent, containing a claim for damages⁴, etc. This claim can either be settled amicably⁵, or else the dispute may be taken to the court of law, or, which is more common, decided by arbitration.

A special clause in contracts is usually devoted to the matters of arbitration. It is often stipulated that in case of arbitration each party should appoint its arbitrator, and, if the two arbitrators cannot agree, they have to appoint an umpire⁶, whose decision (award) is final and binding upon both parties. Some contracts stipulate that all disputes and differences should be settled by arbitration in a third country, while some other contracts provide for an arbitration in the country of the respondent party⁷.

Disputes between Russian and foreign companies are usually settled by the Foreign Trade Arbitration Commission at the Russian Chamber of Commerce and Industry⁸. This Commission consists of fifteen members appointed by the Presidium of the Russian Chamber of Commerce. The arbitration by this Commission was stipulated in the two contracts of the previous chapter; it is also stipulated in the contract given as an example below.

This contract is at the same time shorter and longer than each of the two previous ones. Contract No. 3 consists of two parts: of the contract proper⁹ (in which all the usual requisites¹⁰ of the contracts can be found, such as the legal addresses of the parties, the denomination of goods, the total amount of money involved, the

101

9. contract proper

10. requisite n

11. to be applied to

12. harsh or uncustomary (terms)

13. in small type

14. ambiguous adj

15. to draft v

terms of delivery, etc.), and of the General Conditions of the Contract (Appendix No. 1). These are quite long. They are standard and may be applied not only to" this particular contract (which deals with the sale of equipment) but to many other different contracts as well. The General Conditions form an integral part of Contract No. 3 and should be signed as well as the contract proper.

Often, due to their very length, standard general conditions to contracts are not read by those signing the contracts, which may lead to problems. However, if the terms causing such misunderstanding are harsh or uncustomary¹² (especially if they are in small type¹³), many courts will refuse to enforce the agreement. If a term is ambiguous¹⁴, the doubt will be resolved against the party, who drafted¹⁵ the text.

Nevertheless, it is better that that which is signed, should be read, and therefore it is recommended that the users of this book read and translate the rather lengthy General Conditions of the Contract No. 3. For the sake of brevity, some clauses of the General Conditions have been omitted.

NOTES

• часто бывает, что

• не полностью бесконфликт­ный, не идеальный

• письменная жалоба, реклама­ционное письмо

• требование о возмещении убытков

• дружественно, по взаимному согласию

• супер-арбитр, третейский судья

• ответчик

• ответчик (отвечающая сторона)

• Внешнеторговая арбитраж­ная комиссия при Торгово-промышленной палате России

1. it quite often occurs that

2. not altogether smooth

3. letter of complaint

4. claim for damages

5. amicably adv

6. umpire n

7. respondent n respondent party

8. Foreign Trade Arbitration Com­mission at the Russian Chamber of Commerce and Industry

• собственно контракт

• составная часть

• применяться к

• жесткие или необычные (условия)

• мелким шрифтом

• двусмысленный

• готовить проект, составлять текст для подписания